2. All the costs of lawsuit are assessed against the Defendant and the Intervenor joining the Defendant.

A. On March 4, 1997, the Plaintiff was newly appointed as a teacher of Chigh School established and operated by the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) (hereinafter referred to as the “instant school”).

B. On March 28, 2019, the Office of Education of Gwangju Metropolitan City requested disciplinary action against 18 teachers, including the Plaintiff, on the ground that the instant school violated its duty to maintain dignity with respect to the wrongful conduct regarding sexual intercourse between the teachers, which came to be recognized by the instant school around July 2018. Of them, the Plaintiff demanded heavy disciplinary action against the Plaintiff.

다. 참가인은 2019. 6. 20. 이 사건 학교 교원징계위원회(이하 '징계위원회'라 한다)에 원고에 대한 중징계 의결을 요구하였다. 징계위원회는 2019. 7. 23. 아래와 같은 각 징계사유(이하 각 순번별로 '징계사유①' ~ '징계사유⑪'의 방식으로 칭한다)를 들어 원고에 대한 해임을 의결하였고, 참가인은 2019. 8. 7. 원고에게 2019. 9. 1.자 해임처분(이하 '이 사건 징계처분'이라 한다)을 하였다.

[성희롱]① 2016학년도에 야한 유머 책을 소개하며 내용 중 “여자친구가 남자친구에게 배고프다. 하니 배부르게 해주겠다”라고 말함② 2017년도 4월경 영어수업 중 “너희들 야한 거 좋아하지”라고 말하며 선배들의 모둠 영상을 틀어주고, 이에 학생들이 “뭐가 야해요?”라고 말하자 “언니들 다리 살색이, 살색이라서 야하다. 그렇게 생각하지 않냐?”라고 말함③ 2016~2017학년도 수업시간에 “여자한테 구멍이 세 개 있는데 오줌구멍, 똥구멍, 보지구멍이 있다”라고 말함④ 2017학년도에 치마가 짧은 여학생에게 “치마가 짧다. 내가 남학생이면 들춰보고 싶겠다”라고 모션을 취하며 말함[교사로서 적절지 않은 품위손상행위]⑤ 2016학년도에 “우리 학교 교복치마는 섹시미가 없다”라고 말함⑥ 2017학년도에 숙제를 하지 않은 학생에게 맨 뒤에 세워 치마를 입었는데도 앉았다. 일어났다. 하게 함⑦ 2017학년도 1학기 말에 “D이라는 야동 사이트 보냐?”라고 말함⑧ 2018년도 6월경에 야구 관람을 한 학생에게 교무실에서 “어제 잘 들어갔냐? 야구 좋아하냐?”라고 말하며 학생의 어깨에 손을 걸침⑨ 2018학년도 6월경 급식실 앞 벤치에 앉아 있는 학생들을 향해 “너네 안이 다 보인다”라고 하며 위 아래를 쳐다 봄⑩ 2018학년도 7월경 진로 강의 시간에 한 학생을 교무실로 불러 “혼자가 치마 입고 있는데 다리 꼬라지 봐라. 그게 뭐냐? 남자 선생님들이 안 볼 것 같다. 다들 피한다”라고 말함[2차 가해]⑪ 2018학년도 7월에 성비위 사건 파악을 위해 조사한 설문지를 보고서 “이렇게 두 개 풀면 안 야하니? 내가 이렇게 풀고 다니면 좋겠어! 배신감을 느낀다. 앞으로 단추 한 개 이상 풀고 다니면 개박살 내 버린다. 앞으로는 원칙대로 하겠다. 너네가 실망시킨 대가다”라는 발언으로 학생들에게 2차 가해를 하였음

D. On August 28, 2019, the Plaintiff filed a petition review with the Defendant seeking the revocation of the instant disciplinary action. However, on November 13, 2019, the Defendant rendered a decision to dismiss the Plaintiff’s claim on the grounds that the instant disciplinary action is lawful procedurally, and that the grounds for disciplinary action are recognized in substance and that the disciplinary action is appropriate even if the disciplinary action is determined (hereinafter “instant petition review decision”).

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 7, Eul evidence 1, Eul evidence 6, Eul 12, 13, 15 (including each number; hereinafter the same shall apply) and the purport of the whole pleadings

2. Whether the examination and decision of the petition of this case is legitimate

A. The plaintiff's assertion

The instant disciplinary action was conducted on the basis of a unilateral and simple anonymous question, etc. without properly investigating facts, and all of the grounds for the disciplinary action are not recognized. Even if certain grounds for the disciplinary action are recognized, dismissal is excessive in light of the degree of misconduct, and in similar cases, the instant disciplinary action is contrary to equity in comparison with disciplinary action against other teachers, and thus, is in violation of the principle of proportionality or the principle of equality. Nevertheless, the Defendant dismissed the appeal review seeking the revocation of the instant disciplinary action, and thus, the instant appeal review decision is unlawful.

B. Relevant legislation

It is as shown in the attached Form.

C. Determination

1) Facts of recognition

A) In addition to the English curriculum in the instant school, the Plaintiff was assigned to the position of the chief of the first grade department in 2018, and provided guidance, such as school welfare programs, to all students of the relevant school year (Evidence A 13).

B) On July 2018, the principal of the instant case became aware of the occurrence of the misconduct related to sex by a part of his/her teachers, and then conducted a bearer survey on July 23, 2018 on the facts that he/she directly experienced or observed sexual harassment and sexual violence (hereinafter “sexual harassment, etc.”) within the school group on the entire student of the instant school. The principal of the instant case is deemed to have suffered from sexual harassment, etc. on the basis of the result of the survey, and notified the results of the said survey to the Seoul Southern Police Station of the results on July 26, 2018.

C) On July 26, 2018, and July 27, 2018, the Gwangju Metropolitan Office of Education and the Gwangju Southern Police Station conducted an investigation into transfer of the entire number of students enrolled in the instant school for both days, and recorded the statements of victims of sexual harassment, etc. or witnesses in the interview record book. In the process, the parts related to the instant disciplinary cause out of the descriptions of the survey site of inorganic questionnaire and the interview record book are extracted as follows (No. 16, 17 evidence).

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.

D) On February 8, 2019, the Plaintiff was suspected of violating Article 17 subparagraph 5 of the Child Welfare Act (child abuse by a child welfare worker, etc.) by engaging in emotional abuse that may harm the mental health and development of a child due to disciplinary reasons ② and ③ such acts. However, on February 8, 2019, the Plaintiff was subject to a non-prosecution disposition by the Gwangju District Prosecutors’ Office.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 5, 6, 9, 18, Eul evidence Nos. 5, 12, 16, and 17, the purport of the whole pleadings

2) Determination as to the existence of grounds for disciplinary action

A) In an administrative litigation disputing the legitimacy of a disciplinary action on the ground of sexual harassment, the burden of proof of the grounds for disciplinary action lies on the Defendant asserting the legality of the relevant disposition. However, it is sufficient to prove a high probability that there was a certain fact when comprehensively examining all evidence in light of the empirical rule, barring special circumstances. Civil liability and criminal liability are subject to different principles in terms of guiding ideology, burden of proof, and degree of proof. Thus, it is difficult to exclude the existence of grounds for disciplinary action in an administrative litigation solely on the ground that the aforementioned facts were pronounced not guilty on the grounds that sexual harassment in a criminal trial involving sexual harassment were committed, and thus, such circumstance alone does not preclude the existence of grounds for disciplinary action. On the other hand, when a court examines a lawsuit related to sexual harassment, it is difficult to understand gender discrimination in the context where the case occurred and to realize gender equality (see Article 5(1)2 of the Framework Act on Gender Equality). It is unreasonable to deem the victim to have been exposed to the victim’s perception of sexual harassment or sexual harassment without considering the victim’s awareness of harm or fear of harm caused by the victim.

B) On the other hand, the Intervenor appears to have assessed the violation of the duty to maintain dignity, not sexual harassment, among the grounds for the instant disciplinary action. However, the purport of the instant disciplinary action was that: (a) the instant disciplinary action was conducted in investigating the misconduct related to the sex of the teachers; and (b) the victim’s statement was most sexual harassment, etc.; and (c) below, the credibility of the victim’s statement and the existence of the grounds for the disciplinary action

In light of the following circumstances, considering the characteristics of sexual harassment cases, the protection of victims, and the superior position of teachers, etc., the evidence submitted by the Defendant alone is insufficient to recognize the grounds for disciplinary action of this case, which constitutes a violation of the Plaintiff’s sexual harassment or the maintenance of dignity, and there is no evidence to acknowledge otherwise.

(1) In the ordinary disciplinary procedure, an investigation is conducted by a specific circumstance, and a final disciplinary action is conducted after the grounds for disciplinary action are specified based on evidence reinforced in the process. However, in the case of the instant disciplinary action, 18 teachers, including the Plaintiff, are classified as “non-ranking teachers” through a bearer inspection method to search for misconduct related to the nature of all the school teachers of the instant case through an interview and an interview. At the same time, the grounds for the disciplinary action against the Plaintiff, etc., which was designated as a wrongful teacher, was de facto finalized. As for the disciplinary action of the Plaintiff, etc., the Plaintiff, etc., who was designated as a wrongful teacher, had no specific investigation in the disciplinary procedure after the new disciplinary procedure. In this regard, in order to take disciplinary action, the Plaintiff had the opinion that fact-finding should be confirmed, and most of the instant disciplinary grounds were able to verify facts of other students through the initial investigation or re-examination of the contents of the relevant disciplinary action against the relevant student through the investigation or re-examination (Evidence evidence No. 23).

(2) With respect to the atmosphere at the time of the survey and interview on all the students of this case, the graduates E present at this court and testified that “At the time of the survey, some relatives shared what talks or actions had been made to the school, and what kind of son did not have been made known to the other students, and submitted a written report to the other students, which is difficult to confirm.” The “we need to use it? even if we did not use it?” The investigator did not know that he did not unilaterally received the student’s talk and did not confirm specific facts. In addition to the above witnesses, they did not appear in the atmosphere at the time of the survey, and they did not make a statement to the contrary that they did not have experienced directly from the atmosphere at the time of the interview, but did not make a statement to the effect that they did not appear to have been compelled to attend the school, and that they did not make a statement to the extent that they did not have been subject to disciplinary action, including the Plaintiff’s non-compliance with the attendance of the other students at the time of the interview.”

In general, it is difficult for victim students, who have been sexual harassment, etc. from teachers in the superior position, to actively notify of and respond to the fact of injury, etc. is likely to cause secondary damage (in particular, if such misconduct was committed closely at a place where no disclosure is made), and if they have reported the fact of damage, the credibility of the statement should not be easily rejected. However, in the case of the statement on the grounds of the grounds of the disciplinary action of this case, it is necessary to recognize the credibility of the statement through a thorough examination of the consistency, rationality, etc. of the statement, taking into account the background leading up to the transfer inspection, the existence of public performance and multiple disagreements, etc.

(3) First of all, the grounds for disciplinary action related to the uniforms of the instant case were examined as No.4, 5, 9, and 0. The following results of the survey conducted by the Plaintiff were 12 students who mentioned the Plaintiff, and 44 students who mentioned the Plaintiff in the interview and investigation conducted thereafter, but the Plaintiff pointed out that most of the 'non-defensive acts' were said to the effect that the Plaintiff pointed out that the Plaintiff’s non-defensing of the school uniforms of the Plaintiff, and that the 'defensive acts' was "short-term", and the Disciplinary Committee recognized that only 1 to 1 was the grounds for disciplinary action except for most of the school welfare acts. However, the grounds for disciplinary action No.4, 5, 9, 00 each remarks were deemed to be sexual harassment or an improper act as a teacher, and thus, it is difficult to conclude that each of the above remarks was a sexual harassment or an improper act as a consequence of interview and investigation.

즉, 원고가 징계사유④, ⑤, ⑨, ⑩ 관련하여, 실제 학생들에게 짧은 치마를 입지 말라든가, 교복을 줄여 입지 말라든가 하는 지적하는 취지의 발언을 하였다 하더라도, 앞서 본 바와 같이 전수 설문조사 및 면담 과정에서 하나의 일화를 몇 명이 공유하여 진술하기도 했던 점, 원고는 2018년 1학년부장으로서 학생들에 대한 생활지도를 담당하였는데 일부 학생들은 원고의 지적을 받고 반감이 생겨 원고의 교복지도를 성희롱이라고 적어 내기도 한 점(갑 제24호증) 등을 고려하면, 이 부분 징계사유를 뒷받침하는 일부 학생들의 면담 내용은 그 맥락이나 내용이 과장되었을 가능성이 있어 그 진술만으로 원고의 교복지도 발언이 부적절한 방식으로 이루어졌다고 단정하기 부족하다. 더구나 징계사유⑤의 경우 진술학생 3명(학년, 반 등에 비추어 면담에 응한 3명에 설문지를 제출한 2명이 포함되어 있는 것으로 보인다)이 기억하는 원고의 발언 내용과 맥락도 서로 달라, 학생들 사이에서도 원고의 발언에 대한 이해가 달랐던 것으로 보인다. 즉, 어떤 학생은 원고가 성적 언동으로서 "섹시미"라는 단어를 강조하여 말한 것처럼 묘사하고 있는 반면, 어떤 학생은 원고가 "다른 학교 교복은 줄이면 섹시한데 우리 학교는 그렇지 않다. 줄이지 말라"고 말하여 '섹시'라는 단어를 부가적으로 언급한 것으로 묘사하고 있다. 징계사유⑤에 대하여 반대진술을 한 학생은 "원고가 '치마를 줄여입는다고 멋져 보이지 않고, 오히려 촌스러워 보일 수 있다'는 취지로 말한 것으로 기억한다"면서, "복장지적을 받아 기분이 나빴던 학생들이 익명성이 보장된 상태에서 과장된 표현을 썼을 수 있다"고 진술하기도 하였다(갑 제13호증의 11).

(4) (1) The grounds for disciplinary action ① and (3) are insufficient to recognize the fact that the Plaintiff made the same purport only with the result of an interview and investigation. The grounds for disciplinary action ① are based on one student’s statement (the same student who responded to interview in light of grade and reflect, etc.). The content of the statement is likely to remain the same as that of the student’s sexual speech and behavior that may cause a sense of shame to students. Nevertheless, there is no student who made a report in the course of the complete investigation, other than the above one student, and the Plaintiff’s class of business at the time stated that there is no few students who made such a statement (No. 9 and 13 evidence). Furthermore, the grounds for disciplinary action (3) is inappropriate in view of the high level of sexual expression among the grounds for disciplinary action in the instant case, if the Plaintiff made such a statement, it is natural for the Plaintiff to have made such a statement during the first interview, and there is no possibility that the Plaintiff made a statement about this part of the statement before and after the interview.

(5) The grounds for disciplinary action ② recognizes the Plaintiff as well. However, unlike the two students who made the same statement, some of the students at the time did not accept the above statement in the previous and latter context, and did not understand that it was an issue by extracting only the same statement as the grounds for disciplinary action ② without considering the previous and latter context. In other words, as at the time, the Plaintiff did not want to hear English classes, “I would like to show that I would know that I would know that I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to know I would like to see I would like to know I would like to see if I would like to see I would like to know I would like to see I would like to see I would like to see I would like to see I would like to see I would like to see I would like to say that I would like to know I would like to see I would like to know I would like to know I would like to know I would like to see the Plaintiff's.

(6) Even in the case of a disciplinary cause No. 201, the statement supporting the cause of the disciplinary action is only one student, but it is difficult to recognize the content of the student’s interview and investigation. In this regard, the Plaintiff stated from the disciplinary procedure stage that “it is an issue that a student can easily access obscenity to the Internet during the class hours in the middle of 2017.” However, the Plaintiff denied the charge that “D was out of the school, and the Plaintiff was not allowed to access the same place.” However, it is difficult to secure the accuracy and credibility of the above statement because the Plaintiff did not re-examine the said one student or investigate the same anti-party who made the said statement.”

(7) While the Plaintiff did not deny the existence of a contact with the Plaintiff, the ground for the disciplinary action is difficult to readily conclude that the Plaintiff committed an inappropriate act as a teacher, depending only on the subjective memory and perception of the statement student as to the single-time situation, as the Plaintiff did not make a statement that there was no other than the above statement student other than the above one student in the investigation for the previous students.

(8) The grounds for disciplinary action â……………§) is deemed to have been seated after a classroom in the event the Plaintiff became aware of the well-beingd student without exception, and even if the Plaintiff rendered such a decoration, it is difficult to view that the Plaintiff’s act was inappropriate as a teacher.

징계사유⑪의 경우, 학생들의 진술에 비추어 볼 때 원고가 설문조사에서 많은 학생들이 원고의 교복지도 관련 표현을 문제 삼은 데 대하여 그와 같은 발언을 한 것으로 보이기는 한다. 그러나 앞서 본 바와 같이 전수조사 결과 원고에 대한 대부분의 고발 사항들이 교복지도와 관련한 것이었고 이는 성희롱에 해당하지 않는 정당한 교복지도였던 것으로 보이는 상황에서, 이와 같은 정당한 생활지도를 비위행위로 고발한 학생들에 대하여 원고가 서운함을 드러내며 언성을 높였다 하여 이를 만연히 성 비위행위 관련 피해자 내지 신고자에 대한 '2차 가해'라고 평가할 수는 없다.

(iii)In conclusion:

The disciplinary action in this case is unlawful because it is difficult to recognize the grounds for disciplinary action, and therefore, the decision to dismiss the plaintiff's petition review request seeking the revocation of the disciplinary action in this case must be revoked illegally.

3. Conclusion

The plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judges Lee Jong-soo

Justices Kim Song-chul

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.